Professor Kelley-Widmer and the students of the 1L Immigration Law & Advocacy Clinic have been very busy. The clinic has had some exciting recent successes, including winning advance parole for a DACA client who was able to travel to visit his father in his home country for the first time in a decade. Together with the Farmworker Legal Assistance Clinic, we also helped win Special Immigrant Juvenile Status for a young man who is a farmworker in upstate New York.
Currently, the spring 2021 cohort of seven first-year students are working on immigration applications for Cornell students, faculty and staff, including DACA and naturalization cases. Further, each student team is working on an asylum case for a client residing in upstate New York. This complex work involves detailed trauma-informed client interviewing as well as legal research and persuasive writing. Right now, we have clients from about 15 different countries, from Haiti to Honduras to the Phillippines. In addition, students are presenting public-facing community advocacy projects, such as an Immigrant Allyship training through Cornell’s Institute for Inclusive Excellence. Students are involved in public discourse on immigration topics, including a recent event with National Book Award finalist author Karla Cornejo Villavicencio, attended by about 500 people, and an upcoming discussion with Lizbeth Mateo of the film The Undocumented Lawyer.
Professor Kelley-Widmer’s scholarly article about little-known Trump immigration policies is forthcoming in the Georgetown Journal of Immigration Law this semester. She continues to comment on immigration issues in the media, such as for Buzzfeed and Roll Call.
The Clinic has recently litigated a number of matters. Advanced Clinic Student Kayleigh A. Yerdon secured release from detention for one client, a physician, who survived contracting the coronavirus while in immigration detention and asylum for another at the trial level. Clinic Students Emma Sprotbery and Khalid Vrede, with assistance from Camilah Hamideh, a student in the 1L Immigration & Advocacy Clinic, secured asylum for another client – a transgender Honduran woman, Ms. C-S-, in an appellate matter. The Board of Immigration Appeals (BIA) found that the since-stayed “third-country transit ban” did not apply to Ms. C-S- and that her testimony, corroborated by evidence of conditions in Honduras, had established that a gang had raped and beaten her and that police had refused to assist her. The Board held not only that she was eligible for asylum but also that she warranted it as a matter of discretion. Working with members of the Louisiana Advocates for Immigrants in Detention, the Clinic also obtained the release of a Cameroonian client detained in Winn, Louisiana, arguing that the client’s health conditions had rendered him particularly susceptible to COVID-19. The client had been a leader of a group of detainees that had gone on a hunger strike to protest conditions at the detention center. The clinic is now representing him in a motion to reopen before the BIA and a Petition for Review in the Fifth Circuit. Advanced Clinic students Zora Franicevic and Thomas Shannan briefed senior staff of the United Nations High Commissioner for Refugees on U.S. legal issues and presented other research to the University’s Migrations Initiative seminar series, which they then adapted into an article for the legal blog Just Security, Salvaging US Refugee Law in 2021: The Case for Tackling the Problem of Discretionary Asylum.
With colleagues, Clinic faculty members Kysel, McKee and Yale-Loehr adapted a new curricular unit Kysel developed for the Clinic into an at-home seminar, Critical Perspectives: Racism, Xenophobia and Im/migration, they are co-teaching for the first time this semester with Professors Thomas, Lyon, Kelley-Widmer, and Gleeson (ILR).
Kysel continues to engage in research on international migration issues. He has a chapter forthcoming in a Routledge edited volume, COVID-19 and Human Rights, analyzing the impact of the pandemic on international migration. This spring, he is organizing a symposium to mark the first anniversary of the launch of the 14 Principles of Protection for Migrants, Refugees and Displaced People he co-authored last year, which will evaluate mobility, human rights, and the public health response to the COVID-19 Pandemic. The proceedings of that symposium are slated for publication in EJIL:Talk!, the blog of the European Journal of International Law, in June. Kysel also published two pieces analyzing the role of human rights and migration in the transition to the Biden Administration in Just Security, Could a Migrants’ Bill of Rights Provide a Blueprint for Migration Policy in the Americas, and, How to Elevate the Status of Human Rights – at Home and Abroad – in a Biden-Harris White House. Finally, Kysel co-organized a panel on the past and future of the Refugee Convention in its now-70th Anniversary year at the annual meeting of the American Society of International Law, featuring senior United Nations and U.S. Government officials and leading experts (some of the remarks can be viewed here).
The Entrepreneurship Law Clinic continued to expand its work both within the University and more broadly in the local community. In any given semester, law students participating in the Clinic provide pro bono legal services to more than twenty startups and small businesses. Clinic clients include for-profit businesses, social enterprises and non-profit organizations, many of which were formed in 2020 to address issues related to the global pandemic and social justice concerns in the U.S. The Clinic is also working with a startup incubator in Jamaica, Queens, through a partnership started by Cornell Cooperative Extension.
The Farmworker Clinic has remained busy into the start of 2021. We’ve received numerous approvals of immigration-related applications. The Clinic has also continued to file additional applications for immigration relief with federal agencies and for predicate proceedings in state courts. Additional filings include those related to our efforts to enforce a default judgment the Clinic obtained on behalf of a group of clients who were subjected to fraud in recruitment as part of the H-2A temporary agricultural worker program. We have maintained active relationships with clients both in New York state and beyond, enabling us to respond to emergency requests from government agencies in cases that have involved logistical support from local and international community partners. We have also established new relationships with partners both in the private and not-for-profit sectors, as well as in governmental agencies, thanks to the dedication our students have shown to pursuing remedies for their clients on everything from recruitment abuses to family separation at the border.
Farmworker Clinic Publications and Interventions
Briana Beltran, The Hidden “Benefits” of the Trafficking Victim Protection Act’s Expanded Provisions for Temporary Foreign Workers, 41 Berkeley Journal of Employment & Labor Law 229 (2020).
In January 2021, Project Lifeline launched its Predicate Order State-by-State Age-Out Analysis based on research provided by the Farmworker Legal Assistance Clinic. The Marshall Project relied upon the analysis in its article entitled These Young People were Told They Could Stay in the U.S. They Might Get Deported Anyway by Andrew R. Calderón (January 29, 2021).
Pranoto Iskandar and Beth Lyon, Indonesia’s Maritime Needs Outward Looking Approach, The Jakarta Post (Jan. 26, 2021).
The Clinic is currently representing The Geneva Believer, a non-profit governmental watchdog blog based in Geneva, New York. The blog was sued by a local construction company over coverage of the company’s lucrative real estate deals with the City of Geneva. Last year, the Clinic defeated a request for a Temporary Restraining Order which would have required The Believer to remove the articles from its website pending resolution of the suit. The Clinic filed an anti-SLAPP motion to have the case dismissed in the fall. In December one of our students, Rob Ward, gave oral argument on a novel question of New York law—the retroactive application of New York’s amended anti-SLAPP legislation—with teaching fellow Tyler Valeska assisting. A court decision is expected imminently.
We are also representing a group of Pennsylvania newspapers seeking to intervene and unseal documents in a wide-ranging public corruption case. The case—a federal prosecution in the Eastern District of Pennsylvania—involves a state legislator who successfully ran for office after secretly pleading guilty to money laundering charges, thereby necessitating a new election and substantially disrupting politics in Pennsylvania. In conjunction with co-counsel at the Reporters Committee for Freedom of the Press, the Clinic recently filed a motion to unseal under First Amendment and common law right-of-access theories. The motion requests documents that the court has placed under seal; access to these documents would allow our clients to adequately inform the public of the full nature and extent of the corruption scheme and how it was investigated and prosecuted. The government announced that it would not oppose the vast majority of the documents we sought and is now planning on releasing them to the judge for minor redactions.
The Clinic continues helping to spearhead an initiative of the Free Expression Legal Network, a coalition of clinics and media advocacy groups around the country, related to the treatment of journalists at protests. The coalition has compiled policies from cities and police departments nationwide and is in the process of cataloging and packaging them in a way that will assist localities in preventing First Amendment abuses against journalists covering demonstrations. Clinic students have drafted a introductory letter to send to local stakeholders and are currently undertaking research regarding the First Amendment right to record police activity.
The Clinic filed a Complaint last fall on behalf of investigative news site VTDigger, which seeks access to information involving the largest securities fraud scandal in the State’s history that defrauded immigrant investors to the tune of hundreds of millions of dollars. The suit also seeks to change public records law in Vermont concerning an exemption that allows the State to withhold documents that are relevant to litigation to which the State is a party of record until the documents are ruled discoverable by a court or the litigation concludes.
The Clinic will file an appellate brief in the Fourth Department in the coming months on behalf of upstate New York online news site The Batavian after a family court judge denied our client’s motion to intervene and unseal a transcript of an attorney disqualification proceeding. That proceeding sought to disqualify the prosecuting attorney for a potential conflict of interest due to his dual role as a part-time judge in a court hearing a related criminal matter. Our client came to us for assistance after he was shut out from attending the hearing in person in violation of his constitutional, common law, and statutory rights of access. We also represented this client last fall in successfully advocating via letter for changes to a school board’s proposed public expression policy that raised First Amendment concerns.
The Clinic is representing nonprofit news site Documented in its efforts to obtain wage theft-related data from the New York State Department of Labor. A lawsuit that we filed last summer resulted in an initial production of documents, and we are continuing to seek additional data from the government. We also have drafted additional FOIL requests and appeal letters concerning the client’s reporting on local police forces and have advised on employment matters as well.
Finally, the Clinic filed a complaint and a TRO seeking to enjoin the execution of a group of death row inmates represented by Justice 360—an organization of death row lawyers. The complaint advances the novel legal theory that a secrecy law in South Carolina violates these lawyers’ rights to professional speech.
Sandra Babcock and Zohra Ahmed, along with their students and in-country partners, have spent much of the last several months grappling with the consequences of the Covid-19 pandemic. Because they have been unable to travel out of the country, they have taken on several new cases of women facing execution in the United States to complement their work on behalf of women on death row in Malawi and Tanzania.
In Fall 2020, the clinic joined the defense team for Lisa Montgomery, a woman executed in the waning days of the Trump Administration. Professor Babcock stepped in to defend Lisa after Lisa’s two lawyers became ill with Covid-19. After Lisa won a stay of execution in federal court, the U.S. Justice Department rescheduled Lisa’s execution for January 12, 2021. In the 24 hours before her execution, three different federal courts issued stays of execution; all were vacated by the Courts of Appeals or the U.S. Supreme Court. Although we were ultimately unsuccessful in preventing her execution, Lisa’s story raised awareness about the connection between trauma (particularly sexual violence) and women’s involvement with the criminal legal system. Lisa’s case was later cited by a letter signed by more than three dozen Members of Congress who called on President Biden to abolish the federal death penalty.
In the wake of Lisa’s execution, the clinic has employed the lessons learned in her case to defend other women sentenced to death in the United States and around the world. Clinic students have filed petitions with the Inter-American Commission on Human Rights and the African Court on Human and Peoples’ Rights seeking stays of execution as well as remedies for human rights violations committed in their cases. Students are also helping to create a manual of best practices for lawyers defending women at trial or on appeal.
Meanwhile, the Cornell Center on the Death Penalty Worldwide has emerged as a global leader in efforts to document and expose gender bias in the administration of the death penalty. In January-March 2021, the Center organized a series of webinars on women and trauma, and in May 2021 the Center will host a series of webinars on intersectional discrimination in capital cases.
In Fall 2020, Professor Babcock published Sub-Saharan Africa: The New Vanguard of Death Penalty Abolition, 40 Amicus Journal 42 (2020).
Professor Babcock was interviewed by numerous media outlets regarding the execution of Lisa Montgomery, including Democracy Now, the New York Times, The Guardian, Ms. Magazine, the Kansas City Star, the Huffington Post, Sky News, and Good Morning Britain.
Cornell Juvenile Justice Clinic Client Anthony Enriquez was granted parole by the South Carolina Parole Board after serving nearly twenty-seven years in prison for a homicide that took place when he was sixteen years old. This was Anthony’s seventh parole hearing and the second one at which the Clinic assisted in his representation. Anthony hopes to continue with his college education, which he had begun during his incarceration, and he is happy to be breathing “free air.”
Clinic Faculty John Blume and Hannah Freedman, along with their partner organization Justice 360, have also been offering a series of CLE’s for attorneys representing juvenile defendants in waiver/transfer proceedings as well as developing a number of constitutional challenges to systemic issues plaguing the juvenile justice system related to outdated criteria for waiver and conditions of confinement in juvenile detention facilities.
As broader issues of racial discrimination surface around the country, we see it in the clinical program in the employment context with no abatement. The Labor Law Clinic often gets requests to represent workers who have been terminated from their employment with race and national origin discrimination claims. There are few resources in the community to assist low-income workers with these types of claims. We regularly represent these workers of color. Oftentimes the cases we get also involve other claims, including contract claims tied to a collective bargaining agreement that requires just cause for termination. Occasionally, there are other statutory claims, like claims of protected concerted activity under the NLRA. The most successful outcomes have been obtained for the workers who are also covered by the just cause language. This semester only the Advanced Labor Law Clinic is offered and the two remaining cases involve workers of color. One low-wage worker who was terminated from a care facility. The other worker was terminated from a light manufacturing plant. One case is pending before the New York State Division of Human Rights, and the other will be resolved in final and binding arbitration and the Company will have the burden of proof to show that the termination was consistent with just cause. At the end of last year, students successfully negotiated an excellent resolution to a case scheduled for a 2-day arbitration on behalf of an African-American man and race was the underlying issue in that termination. Law student Andrew Melendez, who saw the case through to the end said: “I’m very glad we were able to get a favorable settlement for Eric. The pandemic definitely made this case more complicated, but the hard work of myself, Tony Wassef, Carolyn Taglienti, and Kaitlyn Marasi really helped Eric get recompense in these tough times.”
Another case, unrelated to race, was scheduled for arbitration in March, but was settled days before the hearing. The students, Greg Nelson, Jill Chow and Violet Nieves Cylinder, were prepared for the full day evidentiary hearing when the Company offered to settle.
Angela Cornell has finalized a book chapter, “Labor’s Obstacles and Democracy’s Demise,” forthcoming in The Cambridge Handbook of Labor and Democracy, Cambridge University Press, which she is coediting with Mark Barenberg.
In February she was a speaker at The Future of Labor and Employment Law, Comparative Perspectives Conference organized by the University of Lorraine. Her topic was “Aligning U.S. Labor Law with Widely Accepted International Human Rights: a Critical Task After Trump’s Havoc.” She will contribute a chapter to the edited volume from the conference presentations.
In the fall of 2020, the Tenants Advocacy Practicum was created as an outgrowth of the Tenants Legal Hotline pro bono project. The Practicum teaches students the fundamentals of housing including New York landlord-tenant law, the causes and effects of eviction, racial discrimination, and the civil right to counsel. The Practicum, directed by Professor William J. Niebel, has obtained a student practice order from the New York State Appellate Division, Third Department, allowing students to appear in court on behalf of tenants.
The Practicum’s lessons in substantive housing law, legal ethics, racial justice, and negotiation techniques enable law students to successfully advise and advocate for tenants facing a variety of housing issues—including violations of the warranty of habitability, lease violations, illegal lockouts, security deposit withholdings, and eviction notices. Through research, analysis, drafting, negotiation, and advocacy, students have been instrumental in narrowing the justice gap and combating systemic displacement of so many local residents, particularly people of color, lacking access to counsel.
In the fall, ten law students and two undergraduates participated in the Practicum. With various eviction moratoria in effect, the law students advised tenants about their rights and options, and empowered many to better navigate challenges with their landlords. In some cases, they engaged in successful negotiations with landlords’ attorneys. In others, they assisted tenants in recovering security deposits.
One particularly impactful case from the fall semester involved a tenant who was distraught because his landlord refused to return a security deposit to him, without cause. The tenant was stymied as to how to proceed and felt helpless to pursue this money owed to him due to the power differential between him and his landlord. A Practicum student, Alex Hong, researched the applicable law and provided excellent advice and counsel under Prof. Niebel’s direction. With Alex’s assistance, the client was not only able to secure the money he so desperately needed during this unique time of financial instability, but he was also awarded punitive damages (doubling his recovery) because the landlord wrongfully withheld the security deposit.
This spring, the Practicum expanded to include an advanced course (Tenants Advocacy Practicum II) and six of the law students from the fall returned, to continue honing their advocacy skills while serving local community tenants in need. Some of these students are currently preparing to represent clients in court. Additionally, eight law students and two undergraduates are enrolled in the primary course this spring, bringing the total to 16 students currently enrolled.
During the spring semester, Practicum students have assisted several tenants who faced egregious violations of the warranty of habitability in their housing. The students conducted thorough research into the relevant case law and armed the tenants with sound legal advice on how to proceed. The students advised the tenants of their right to withhold rent generally, as well as the right to make repairs and withhold the cost of those repairs from future rent. They also assisted the tenants in securing additional protection from eviction under New York’s COVID-19 Emergency Eviction and Foreclosure Prevention Act of 2020, utilizing the appropriate Hardship Declaration.
As the applicable eviction moratoria expire, the work—and the experience gained by the students—will no doubt accelerate into the fall of 2021. The Tenants Advocacy Practicum is thrilled to be expanding again, with the addition of a new Tenants Advocacy Fellow, who will work alongside the law students and Prof. Niebel to increase the reach of the Practicum and number of tenants assisted.